JUDGMENT : STANLEY, J. In the view which I take of the mortgage and kabuliyat which have been referred to in this appeal, the main question raised in the appeal appears to me to present little difficulty, I am of opinion that the two documents cannot be read together as forming one transaction, but that they must be regarded as separate and independent transactions. It appears to me that the learned Subordinate Judge was right in the view which he took of this question. He says that “the mortgage and the lease were different transactions, independent of each other, carrying with them different liabilities and obligations.” The mortgage is in fact a simple usufructuary mortgage containing the usual provision that the mortgagees shall be put into possession of the property, and that they shall continue to hold such possession during the subsistence of the mortgage, that is, the mortgagees shall have actual possession of the property so long as the mortgage subsists. The kabuliyat which was executed by the mortgagor, the day succeeding the day of the execution of the mortgage, alters the relation of the parties to some extent. It is evidence of an agreement whereby the mortgagor was placed in possession of the mortgaged property on his undertaking to pay a fixed jama of Rs. 2,070-13-3 out of the rents and profits to the mortgagees. Further, the kabuliyat provided that the rent should be a charge upon the property, the subject-matter of the lease. It has been pointed out in the course of the argument that the term of the lease does not correspond with the term of the mortgage, and in no way, as it appears to me, can the two documents be interpreted as representing one indivisible transaction. Now if this be so, the mortgage being a simple usufructuary mortgage, the provisions of section 62 of the Transfer of Property Act clearly apply. That section in the case of a usufructuary mortgage enables the mortgagor, on payment of the amount due under the mortgage, to redeem the mortgaged property. Now if this be so, the mortgage being a simple usufructuary mortgage, the provisions of section 62 of the Transfer of Property Act clearly apply. That section in the case of a usufructuary mortgage enables the mortgagor, on payment of the amount due under the mortgage, to redeem the mortgaged property. It has been decided in the case of Tajjo Bibi v. Bhagwan Prasad,[1893] I.L.R., 16 All., 295 that where there is a usufructuary mortgage and a subsequent simple mortgage of the same property, in the absence of special agreement that the two mortgages shall be redeemed simultaneously, the mortgagor is entitled to redeem the usufructuary mortgage without redeeming the simple mortgage. Now there is nothing in the kabuliyat or in the mortgage to show that there was any agreement between the parties that the usufructuary mortgage should not be redeemed unless the charge created by the kabuliyat was also paid off. Therefore it appears to me that on the main contention raised, the mortgagors are entitled to redeem the usufructuary mortgage independently altogether of any consideration of the subsequent kabuliyat and the provisions contained in it, and cannot be compelled as a condition precedent to redemption to pay off the charge created’ by the kabuliyat. 2. Another question, however has been raised on behalf of the appellants, and that is this: the mortgaged property comprised among other villages a village called Adampur. Of this village, a long with others, the mortgagees were placed in possession, but shortly after some time, early in the year 1891, a party who was entitled to preempt this property, obtained a decree for pre-emption, and on the 25th of May, 1891, in pursuance of his decree, dispossessed the mortgagees. The effect of this was that the security of the mortgages was diminished by the loss of this village. The mortgagees in the present suit for redemption contend that they are entitled to have an account taken of what the profits of the village Adampur amount to, and they claim that the usufructuary mortgage can only be redeemed on payment of the amount of these profits in addition to the sum due on the mortgage. 3. The mortgagees in the present suit for redemption contend that they are entitled to have an account taken of what the profits of the village Adampur amount to, and they claim that the usufructuary mortgage can only be redeemed on payment of the amount of these profits in addition to the sum due on the mortgage. 3. The answer to this contention is to be found in the fact that not with-standing that the mortgagees were dispossessed in the year 1891, they remained satisfied with their security, took no steps to enforce payment of the amount due under it, took no steps for an enhancement of the rents and profits of the remaining lands so as to recoup them the loss of Adampur and in fact acquiesced in the loss of this portion of their security and remained content with the remainder of the lands in their possession. The case is met by the decision of their Lordships of the Privy Council in the case of Raja Partab Bahadur Singh v. Gajadhar Baksh, [1902] I.L.R., 29 I.A., 148. In that case upholding a decision of the Judicial Commissioner of Oudh, their Lordships held that where a usufructuary mortgagee was dispossessed of several villages shortly after the execution of the mortgage and acquiesced in his diminished security for upwards of 30 years, he could not thereafter claim interest in lieu of the rents and profits of the property of which he was dispossessed by reason of the mortgagor's failure to secure his possession thereof. I am unable to distinguish this case from the one before us, and I therefore think that the contention of the appellants in regard to it fails. 4. The only remaining question is the question of the costs of the suit. The Court below has given a decree to the plaintiffs respondents with costs. Now in a redemption suit, the usual course is to give the mortgagee his costs unless he has been guilty of such conduct as would disentitle him to costs. In this case no doubt he put forward claims which were untenable, but he established his claim to a sum of upwards of Rs. 1,400 over and above the amount which the plaintiffs were willing to pay to him. Having succeed-ed to this extent I see no reason to deprive him of the costs of the suit. In this case no doubt he put forward claims which were untenable, but he established his claim to a sum of upwards of Rs. 1,400 over and above the amount which the plaintiffs were willing to pay to him. Having succeed-ed to this extent I see no reason to deprive him of the costs of the suit. The claim based upon the kabuliyat is apparently a perfectly just and a fair one. It is only because we considered that it could not be entertained in the present suit that we have rejected it. In my opinion the mortgagees were not guilty of such conduct as disentitled them to costs in the Court below, and therefore I think that, whilst we uphold the decree of the Court below for redemption, we ought to modify that decree by giving the appellants their costs in that Court. As regards the costs of this appeal I think the parties should abide their own costs respectively. BANERJI, J. I too have arrived at the same conclusion as the learned Chief Justice. The suit was one for the redemption of a mortgage made by one Kundan Begam in the year 1889. Shortly after the mortgage she made a wakf of the mortgaged property, and the plaintiffs are the trustees under the wakf. The Court below has made a decree in favour of the plaintiffs declaring them liable to pay a certain sum in addition to Rs. 10,000 the principal amount of the mortgage. The appellants contend that they are entitled to two other sums namely, (I) certain profits due to them under a lease executed in their favour by the mortgagor on the day following that of the mortgage, and (2) the profits' of the village Adampur of the possession of which they were deprived shortly after the mortgage. They also raise the question of the costs of the suit and contend that they are entitled to costs also. 5. As regards the first point the defendants cannot claim in the suit arrears of what is really lease money payable under the lease executed by the mortgagor, unless they can show that the mortgage and the lease represent one transaction, namely, a transaction of mortgage, the lease only providing the mode in which the interest upon the mortgage was to be paid. As was observed: in the case of Altaf Ali Khan v. Lalta Prasad(,[1897] I.L.R., 19 All., 497 each case must be decided with reference to its own peculiar circumstances. We have therefore to see whether the lease in this case was really a part of the mortgage. There are considerations which lead me to the conclusion that the two transactions were not one and the same. The lease was executed not on the date of the mortgage but on a subsequent date. The two documents were not registered at one and the same time as they would have been had they formed one transaction. What is more important is that the two documents do not cover the same period. It is thus evident that the intention of the parties was that the lease was not to be regarded as a part of the mortgage transaction. The remedy of the mortgagees for the money payable to them under the lease is distinct from the remedy open to them under the mortgage; and for such money as is due to them under the lease they ought to resort to the remedy which the lease affords to them. Under the terms of the lease the mortgaged property is hypothecated for the rent payable under it. If there are any arrears due, the mortgagees may, if so advised, seek to enforce the hypothecation and recover what is due to them, but they are not entitled in the suit to claim that, as a condition precedent to redemption, the plaintiffs must pay the arrears of lease money. As the learned Chief Justice has pointed out, the fact that they hold a lien on the mortgaged property for such arrears cannot preclude the plaintiffs from redeeming the usufructuary mortgage of 1889 upon payment of what is due under that mortgage. The Court below was therefore right in refusing to allow to the appellants the amount which they claimed to be due to them as arrears of lease money. 6. As regards the profits of the village Adampur I fully agree with the Chief Justice. The mortgage deed does not provide any specific rate of interest upon the principal amount secured by it. The usufruct of the mortgaged property was to be taken by the mortgagees in lieu of interest. The village of Adampur had before the mortgage been purchased at auction by the mortgagor. The mortgage deed does not provide any specific rate of interest upon the principal amount secured by it. The usufruct of the mortgaged property was to be taken by the mortgagees in lieu of interest. The village of Adampur had before the mortgage been purchased at auction by the mortgagor. A suit for pre-emption was brought in regard to that purchase and succeeded with the result that the pre-emptor obtained possession of the village. At the time when the mortgagees took the mortgage, the mortgagor possessed in regard to the village of Adampur only a defeasible right. After the decree for pre-emption, and after the holder of that decree obtained possession so far back as the year 1891, the mortgagees made no attempt to obtain from the mortgagor an equivalent for the security which they lost in consequence of the pre-emption decree. We must take it that they acquiesced in the loss of that security and took and enjoyed the usufruct of the remainder of the property in lieu of the interest payable to them. It is difficult to distinguish this case from the principle of the Privy Council ruling to which the Chief Justice has referred. The defendants therefore are not entitled to the amount which they claimed in consequence of their not having obtained possession of the village Adampur. 7. As regards costs I have nothing further to add to what has been said by the learned Chief Justice, and I fully agree with him. BY THE COURT:— The order of the Court is that the decree of the Court below be varied to this extent, that the defendants-appellants be allowed their costs in the Court below. In other respects we affirm the decree of that Court. As regards the costs of this Court we direct that the parties, respectively, shall bear their own costs. We allow the respondents two months from this date for payment of such further amount as is due to the appellants.